{¶ 2} Jeffrey and Vanessa were married on May 19, 1979, in Salem, Ohio. One child, Colin, an emancipated adult, (d.o.b. 10/11/1984), was born as issue of the marriage. Jeffrey, a licensed professional engineer, having earned degrees in electronic technology during the course of the marriage, is currently employed as Director of Engineering for Reliability First, a conglomerate engaged in monitoring the electric energy transmission industry, with an approximate income of $160,000 per year. Vanessa, who has a high school education, has been employed since July of 1997 as а part-time circulation clerk for the Portage County District Library, with an approximate income of $10,368 per year.
{¶ 3} On July 12, 2006, Vanessa filed a complaint for divorce, alleging that the parties were incompatible. Jeffrey filed an Answer and Counterclaim on August 10, 2006. A contested trial was held on February 15 and 16, 2007. Testimony was taken from both Jeffrey and Vanessa. The trial court entered its Judgment Entry Decree of Divorce on February 23, 2007, granting the divorce on the grounds of incompatibility, awarding spousal support in the amount of $3,500 per month for a period of six years, and dividing аll marital assets.
{¶ 4} Vanessa timely appeals, assigning the following as error for our review:
{¶ 5} "[1.] The trial court abused its discretion by awarding the appellant spousal support in the amount of $3,500 per month for a period of seventy-two (72) months.
{¶ 6} "[2.] The trial court abused its discretion by failing to award the appellant attorney fees.
{¶ 7} "[3.] The trial court erred as a matter of law by failing to make a division of the sewer tap-in as a marital debt. *3
{¶ 8} "[4.] The trial court erred as a matter of law by determining that the appellant's bank account was a conditional gift from thе appellee's father."
{¶ 9} It is well-established legal principle that, "pursuant to R.C.
{¶ 10} The trial court is provided with broad discretion in deciding what is equitable under the facts and circumstances of each case, however, such discretion is not unlimited. Kunkle v. Kunkle (1990),
{¶ 11} In the guidance of this discretion, the Ohio General Assembly enacted R.C.
{¶ 12} In determining whether such award is appropriate and reasonable, the court must consider the following fourteen factors, to the extеnt they are applicable: (1) The "income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed" under R.C.
{¶ 13} In awarding spousal support in the amount of $3,500 per month for a period of 72 months, the trial court made the following relevant findings:
{¶ 14} "The court herein finds that Husband is gainfully employed with Reliability First Corporation. Husband received a bonus for the past two years. Based on all the evidence, the court determines that it is probable that he will continue to receive a bonus in the future to the maximum of 15% of his annual income. The court finds that between his base salary * * * plus the history of his bonuses * * * Husband's annual income is approximately $160.000.000. On the other hand, Wife is employed on a part-time basis with the Portage County District Library working approximately 20 hours per week and earns an annual income of approximately $10,368.00. *5
{¶ 15} "The Court finds that Husband has a college education which was acquired primarily during the marriage and his income history has been one which demonstrates a considerable annual increase. The court also finds that husband is in good health, and despite the small ailments he described to the Court, he testified that they do not impair his ability to be gainfully employed. The court also heard the testimony of Wife, who likewise testified that she has some minor health issues, but they do not prevent her from being gainfully employed. She also testified that it is her goal to attend college, an accomplishment she was not able to fulfill during the course of the marriage, and that her goal is to obtain a degree in business administration in order to improve her ability to earn a living. Considering, therefore, the length of the marriage of apprоximately 26 ½ years; the education of the parties; the ability of the husband to earn an excellent income, which appears to be increasing at a much greater rate than Wife's income is capable of increasing based upon her level of her present education and training; the fact that parties have no minor children; the property division between the parties; the standard of living adopted by the parties during the course of the marriage; and all other factors enumerated in O.R.C.
{¶ 16} Vanessa argues that the trial court erred and abused its discretion by failing to properly consider and weigh the factors enumerated in R.C.
{¶ 17} Vanessa maintains that such an award is contrary to the Ohio Supreme Court's holding in Kunkle, which states that "in casesinvolving a marriage of long duration, parties of advanced age, and ahomemaker-spousе with little opportunity to develop a career, a trialcourt may, in the proper exercise of its discretion, award alimonyterminable only upon certain contingencies * * *."
{¶ 18} The trial court's judgment entry makes clear that it considered the factors it found relevant under R.C.
{¶ 19} The weight to be applied to each of these statutory factors is a matter within the trial court's sound discretion. Dedic v. Dedic (Dec. 8, 1977), 8th Dist. No. 37820,
{¶ 20} The record supports the trial court's judgment. While the court recognized the long duration of the marriage and the fact that Vanessa spent time at home raising Colin, the evidence also showed that Vanessа was 46 years old and in good health, had graduated high school in two years; had worked in publishing at the time of the marriage, but quit that job to stay at home, even though she was not pregnant. The record revealed that Vanessa expressed a desire to continue her education and receive a degree in business, but had not yet applied to colleges. Vanessa testified she anticipated applying for college and obtaining a degree, but stated it would take her "four or five years" to complete her education.
{¶ 21} The evidence furthеr showed that Vanessa has worked on a part-time basis for the last ten years for the library district, and that she had looked for, but had not applied for full-time employment since the divorce was filed. Vanessa testified that she would do so "depending upon the outcome [of the case]."
{¶ 22} The record further showed that Vanessa was awarded, in addition to the marital residence, which carried no mortgage, a half share of Jeffrey's retirement accounts and pension. In addition, she received significant liquid assets amounting to over $130,000. The presence of significant liquid assets in a distribution of property is a factor which may be considered by the trial court when awarding spousal support. O'Grady,
{¶ 23} Perhaps most importantly, the trial court retained jurisdiction to modify the amount and duration of spousal support should her circumstances change. We conclude, based upon the totality of the circumstances, that the trial court did not abuse its discretion, or violate the Supreme Court's holding in Kunkle, by making its award of spousal support to Vanessa terminable after six years.
{¶ 24} Vanessa next argues that the trial court's award of sрousal support was an abuse of discretion, because it failed to allow her to maintain the same standard of living she enjoyed during the marriage. We find no merit to this argument.
{¶ 25} This court has held that a party is "not specifically entitled to maintain after the termination of the marriage the same standard of living which she enjoyed during the marriage. Spousal support is only required to be fair and equitable." Id. at ¶ 84. "Each party `should enjoy after the termination of a marriage a standard of livingreasonable and appropriate as adjusted by the various [statutory]factors.'" Id. (citation omitted) (emphasis sic). Since the trial court considered the rеquisite statutory factors in making its award, it did not abuse its discretion.
{¶ 26} Vanessa's first assignment of error is without merit.
{¶ 27} In her second assignment of error, Vanessa argues that the trial court abused its discretion by failing to award her attorney fees. In particular, she argues that the trial court failed to consider the relative income of the parties when it made its determination.
{¶ 28} R.C.
{¶ 29} "It is well-established that an award of attorney fees is within the sound discretion of the trial court." Doody v. Doody, 11th Dist. No. 2006-L-200,
{¶ 30} "Upon appeal, the only questiоns for inquiry are whether the factual conclusions upon which the trial court based the exercise of its discretion were against the manifest weight of the evidence; or, whether there was an abuse of discretion." Swanson v. Swanson (1976),
{¶ 31} With regard to attorney fees, the court's judgment entry stated as follows:
{¶ 32} "The court * * * heard the testimony of the parties relative to attorney fees. The testimony of the parties clearly indicates that while their case has been pending for final determination, each of the parties paid from their marital funds their respective attоrney fees incurred by each of them. Having determined, therefore, from parties' testimony that the attorneys have been fully paid and they have been paid from marital assets, the Court does not find any justifiable reason to award any additional attorney fees or to assess Wife's fees to Husband. It is, therefore, the Order of this Court that each of the parties shall pay from their separate assets as herein divided any fee balance due to their respective attorneys."
{¶ 33} As is clear from the language of R.C.
{¶ 34} Vanessa's second assignment of error is without merit.
{¶ 35} In her third assignment of error, Vanessa argues that the trial court erred by failing to divide the "sewer tap-in fee" for the marital residence аs a marital debt subject to division among the parties. We disagree.
{¶ 36} "The trial court * * * has the discretion to equitably divide marital property, including marital debt." Biro v. Biro, 11th Dist. Nos. 2006-L-068 and 2006-L-236,
{¶ 37} With regard to the sewer "tap-in" fee, the court made the following factual findings:
{¶ 38} "The court finds that the parties own real estate, which served as their marital home, located at 1902 State Route 44, Atwater Ohio. Parties agreed that this property has a fair market value of $138,900.00, and is currently unencumbered except that parties' recently received notice that there is a sewer tap-in fee that shall be due at a date in the future in the sum of $10,000.00. Plaintiff and Defendant differed as to whether or not the tap-in fee to be paid for the sanitary sewer hookup will create an increase or decrease in the value of the property or will have no effect on the value of the property. Husband testified that in his opinion, it will increase the fair market value *11 of the property. On the other hand, Wife testified that it most likely will not affect the value of the property. Without any other evidence, the court cannot conclude that the tap-in fee affects the current fair market value of the property. It is, therefore, the Order of this Court that this real estate has a current fair market value of $138,900. The real estate is hereby awarded to Wife, who expressed a desire to retain the marital home subject to Wife paying to Husband one half of the equity, or the sum of $69,450.00. Husband shall transfer his interest in said real estate on the occasion when he has received his equitable share as stated herein."
{¶ 39} As is evident from the judgment entry, the trial court only considered the "tap-in" fee within the context of the value of the marital home, rather than as a "marital debt" to be divided. We conclude the trial court did not err by not considering the sewer "tap-in" fee to be marital debt.
{¶ 40} Although the term "marital debt" is not defined by R.C.
{¶ 41} Although Vanessa introduced evidence, in the form of a letter from the Portage County Water Resources Department, indicating that the marital home would be required to connect to a sanitary sewer system which was to be installed along State Route 44, the letter indicated that the system along that route would not be installed until sometime in 2008. The letter further indicatеd that the Department "will not charge *12 tap-in fees for a period of 1 year following completion of the sewer system," and that the amounts given for the respective fees and costs of connection were estimates, rather than a "specific sum," as is required to establish a valid debt.
{¶ 42} Based upon the foregoing, the trial court did not err by not considering the sewer tap-in fee as a marital debt to be divided.
{¶ 43} Vanessa's third assignment of error is without merit.
{¶ 44} In her fourth assignment of error, Vanessa argues that the trial court committed reversible error when it determined that FirstEnergy Credit Union Account # 26502, in the amount of $10,404 wаs a "conditional gift." The essence of Vanessa's argument is that the trial court erred by concluding Jeffrey's father made a "conditional gift" of the money to her, instead of concluding that he had made a valid inter vivos gift, thus making the account Vanessa's separate property. We disagree.
{¶ 45} A trial court's "characterization of property as either marital or separate necessarily involves a factual inquiry under a manifest weight of the evidence standard." Stacy v. Stacy, 11th Dist. No. 2004-A-0076,
{¶ 46} R.C.
{¶ 47} With regard to the account in question, along with similar accounts opened by Jeffrey in both his and Colin's names, the court made the following relevant findings of fact, and conclusions of law:
{¶ 48} "The court * * * received stipulations that currently Wife has in her name a First Energy Credit Union account number 26502 in the present amount of $10,372.00. Husband has in his name a First Energy Credit Union account number 26501 in the amount of $10,404.00. Parties' son has a First Energy Credit Union account number 26503 in the amount of $10,903.
{¶ 49} "* * *
{¶ 50} "Husband testified that this money was placed in the respective names with the stipulations that in the event that his father shall have need of this money, the funds would be returned to Husband's father for his benefit. Wife did not disagree with Husband's representations. She testified that she has never spoken to Husband's father concerning the nature of this conditional gift except that she did testify that if Husband's father would ever need this money, the money would be made available to him to the extent that Wife would even provide financial support out of her own assets for Husband's father.
{¶ 51} "Based on all of the evidence, this Court is of the opinion that these funds were conditional gifts. It is, therefore, the Order of this Court that these accounts derived from Husband's father shall remain in the names of the parties as they currently exist so long as Husband's father shall live. In the event that Husband's father needs financial assistance from these accounts, then the amount requested by Husband's father shall be taken in equal amounts from each of these accounts on each occasion *14 the financial demands are made. Whatever balance may remain in these accounts upon the demise of Husband's father shall remain the property of the respective ownеr of the accounts."
{¶ 52} We disagree with the trial court's conclusion that the money in the accounts was a "conditional gift." With regard to conditional gifts, "[a] donor may limit a gift and render it so conditioned and dependent on an expected state of facts that, when the state of facts fail, the gift fails with it." Wilkin v. Wilkin (1996), 116 Ohio App.3d. 315, 318. "A classic law school example of a conditional gift is the engagement ring given in contemplation of a marriage that [does not] take place."Kelly v. Kelly,
{¶ 53} In the instant case, there is no such condition precedent attached to the gift. This does not, however, end our inquiry, since Vanessa argues the court erred by not concluding the money in her account was a valid inter vivos gift.
{¶ 54} "An inter vivos gift is an immediate, voluntary, gratuitous and irrevocable transfer of property by a competent donor to another."Smith v. Shafer (1993),
{¶ 55} "The donee has the burden of showing * * * that the donor made an inter vivos gift." Gearhart v. Gearhart, 5th Dist. No. 2007CA0026,
{¶ 56} The trial court's judgment entry, though it incorrectly characterized the transfer of property as a "conditional gift," supports the conclusion that the "gift" in question was not a valid gift inter vivos. This is because the court could only reach the conclusion it did by concluding that Vanessa had failed to clearly and convincingly demonstrate an intent by the donor to make an immediate gift ofany of the accоunts. The record supports this conclusion, since Vanessa admitted upon cross-examination that "there was some conversation" between Vanessa and Jeffrey "that [the] money was to be given in three names with the condition that if Jeff's dad needed it, it would be returned to him."
{¶ 57} Under these circumstances, the trial court did not err by concluding the account in question was not Vanessa's separate property.
{¶ 58} Relying on the Eighth District case, Lisboa v. Karner,
{¶ 59} It is a well-settled principle of law that "a party * * * may challenge jurisdiction at any time during the pendency of a case."Bechtol v. Cobb (Aug. 16, 1996), 6th Dist. No. WM-95-027,
{¶ 60} As Vanessa correctly notes, Lisboa, held, in relevant part, that R.C.
{¶ 61} R.C.
{¶ 62} "If the matter is not primarily a domestic relations matter, then the domestic relations court does not have jurisdiction under R.C. 3105.011." Lisboa,
{¶ 63} Although the term "domestic relations matter" is not specifically defined in any of the relevant statues, Tanagho, upon which the court in Lisboa relied, held that thе determination of "whether [a] property is a * * * martial asset" [is] "within the jurisdiction of the domestic relations court," despite the fact that a third party also was claiming an interest in the property.
{¶ 64} Here, the trial court's determination that the account in question was, in effect, nоt a valid gift inter vivos, was a proper determination for the court to make, since the corollary to determining which assets comprise the marital estate must also necessarily include a determination of which assets, if any, do not comprise the marital estate. In effect, the court's order that the "accounts derived from Husband's father shall remain in the names of the parties as they currently exist so long as Husband's father shall live," does not exceed the court's authority, since the court's judgment in this regard merely preserves the status quo with regard to an asset which is not part of the marital estate.
{¶ 65} Appellant's fourth assignment of error is without merit.
{¶ 66} That said, we find that the trial court did exceed its jurisdiction in ordering that "[i]n the event that Husband's father needs financial assistance from these accounts, then the amount requested by Husband's father shall be taken in equal amounts from each of these accounts on each occasion the financial demands are made. Whatever balance may remain in these accounts upon the demise of Husband's father shall remain the property of the respective owner of the accounts." This is because a domestic relations court dоesnot have jurisdiction over the manner in which an asset clearly not anypart of the marital estate should be distributed.
{¶ 67} This is a matter that could either be determined by the parties themselves, or by means of a separate action, if necessary, filed in the Court of Common Pleas, *18
pursuant to Lisboa and Tanagho. In such a case, res judicata would not apply to a subsequent court's decision, since the instant litigation was not "on a point of law or fact at issue in a former action between thesame parties." Zeigler,
{¶ 68} For the foregoing reasons, we vacate the portion of the judgment ordering the method of contingent distribution of the proceeds of First Energy Credit Union account numbers 26502, 26501 and 26503, and affirm the remainder of the judgment in all other respects. Costs to be taxed against the parties equally.
*1CYNTHIA WESTCOTT RICE, J., COLLEEN MARY OTOOLE, J., concur.